Citation Nr: 1121568
Decision Date: 06/03/11 Archive Date: 06/09/11
DOCKET NO. 08-38 408 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to accrued benefits.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
W.H. Donnelly, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served on active duty with the United States Army from August 1943 to March 1946. He died in April 1985; the appellant was determined to be his surviving spouse by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA) in a March 1987 decision.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
FINDING OF FACT
At the time of his death in April 1985, there was no pending claim for VA benefits filed by the Veteran and no periodic monetary payments were due and owing.
CONCLUSION OF LAW
The criteria for an award of accrued benefits have not been met. 38 U.S.C.A. § 5121 (West 2002 and Supp. 2010); 38 C.F.R. § 3.1000 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). A November 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Though this letter failed to notify the appellant of regulations pertinent to the establishment of an effective date and of the disability rating, such error is harmless in light of the denial of benefits herein. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
There is no assistance which may be offered in connection with the current claim. The appellant's claims center around events, evidence, and decisions which have been of record since prior to 1985. Her arguments focus on actions she maintains VA should have taken at that time, and hence there is no current development to be conducted.
There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
II. Analysis
Accrued benefits are those monetary benefits, other than insurance or indemnity payments, to which an individual was entitled at death under existing ratings or decisions, or based on evidence in the file at date of death. 38 U.S.C.A. § 5121. Applications for accrued benefits must be filed within 1 year after the date of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Any claim for Dependency and Indemnity Compensation (DIC) benefits is considered a claim for accrued benefits.
Entitlement to accrued benefits may be established only if the Veteran had a claim for benefits pending at the time of his death or was entitled to benefits under a current rating decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998)
A review of the claims file reveals no pending claim at the time of the Veteran's death in April 1985. The Veteran had been awarded nonservice connected pension benefits effective February 12, 1981. He did not allege entitlement to any other VA benefit in connection with his claim. From that time until his death, neither the Veteran or any duly authorized representative initiated any claim for any VA benefit.
Further, the Veteran was paid at the single Veteran rate. He did not allege any dependents at that time, and in fact expressly denied having such. When asked by VA for additional information regarding his relationship with the claimant, who VA had identified as his spouse, the Veteran reported that they had been separated for 20 years. The claimant was twice denied entitlement to apportionment of the Veteran's pension benefits because she was not found to be his surviving spouse; they had not cohabitated for many years, and he did not contribute to her upkeep or that of her children. The Board finds that any contention that there was an unadjudicated claim for addition of dependents to his award to be not credible in light of the Veteran's report that he was separated from his spouse and did not know her whereabouts.
The appellant has asserted that since she has been determined to be the Veteran's surviving spouse she should be entitled to the dependent's allowance that he should have been paid. However, despite the RO's determination after the Veteran's death, that the appellant was the surviving spouse, the Veteran had not asserted a claim for dependent's allowance and no such claim was pending at the time of his death.
The appellant essentially asserts that the Veteran should have been paid pension benefits at the married rate rather than at the single rate and that the difference in amounts was a benefit that he was entitled to "under existing ratings or decisions". 38 U.S.C.A. § 5121 (West 2002).
However, at the time of the rating decision that granted the Veteran pension benefits, the VA had not determined that that appellant was the Veteran's spouse for VA purposes. In fact, they had determined that she wasn't. The decision to find her to be the valid spouse was not made until several years after the Veteran's death and was based, in part, on evidence that was not in the file at the time of the initial rating decision or at the time of the Veteran's death. Thus, the Board finds that based on the evidence in the file at the time of the claim and at the time of the Veteran's death, there was no entitlement to benefits.
In the absence of any open and pending claim at the time of the Veteran's death, and in the absence of any entitlement to benefits at the time of death, there is no possibility of entitlement to accrued benefits.
ORDER
Entitlement to accrued benefits is denied.
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs